By Amanda Magee and Victoria McArthur (Articled Student)
Amanda M. Magee, Associate
Phone: 604-685-5438
Email: amm@lmlaw.ca
Don’t just stand and “stair”: A strata corporation must accommodate a disabled resident to the point of undue hardship or risk steep consequences
Testar v. The Owners, Strata Plan VR 1097, 2022 BCHRT 70
This recent decision from the BC Human Rights Tribunal (HRT) emphasizes a strata corporation’s responsibility to address accessibility complaints where a resident suffers from a physical disability.
Background Facts
Mr. Testar, an 84 year-old man, suffers from a myriad of health problems. He lives in a detached home in one of four bare land strata lots built into the hillside in Deep Cove. The only way to access his home is by climbing 7 flights of stairs from the strata’s parking lot. He was rendered housebound in December 2019 when his health conditions worsened and he could no longer manage the stairs.
Mr. Testar advised the strata of his inability to use the stairs and requested the strata install an outdoor tram at a cost of $131,639. Interestingly, Mr. Testar’s wife had previously taken the strata to the HRT in 2009 for refusing to install a tram to accommodate her after she’d suffered a stroke that left her blind in one eye. The HRT had dismissed that complaint, finding that Ms. Testar had not proven that her disability made her unable to ascend the stairs.
The strata ultimately denied Mr. Testar’s request for a tram but suggested alternative accommodations, including a chairlift, a vertical lift/elevator combined with ramps, and increased sitting areas for resting between stairs. Mr. Testar rejected these alternatives on the basis that they were not feasible for him to use independently and safely with his current health conditions.
The other strata owners were opposed to the tram for a variety of reasons, including the cost of installation and ongoing maintenance, as well as the impact of the tram on the property.
HRT Decision
The HRT found that the strata did not, as required, offer Mr. Testar a reasonable accommodation for his physical disability up to the point of undue hardship. While the other owners had complained of the cost of the tram, the HRT determined there wasn’t sufficient evidence showing the other owners would actually face financial hardship if they had to pay for the tram.
The HRT ordered the strata corporation to build the tram within 6 months of the decision, at a cost of over $150,000. The strata was further ordered to pay Mr. Testar $35,000 as compensation for injury to his dignity, feelings, and self-respect. The HRT found that the strata had taken a “resistant and inflexible approach” in its dealings with Mr. Testar, even though it had taken steps to accommodate him. This amounted to discrimination, which was especially serious given that Mr. Testar had been “essentially a prisoner in his own home” for two years.
Takeaways
Strata corporations must take accessibility complaints seriously and address them quickly and diligently, or risk facing costly consequences. It is crucial that stratas remain flexible and work with the complainant to find an accommodation. Even if a cheaper accommodation proposed by the strata appears to be a reasonable compromise, it may not fulfil the strata’s duty to accommodate in the eyes of the HRT.
WHAT WE DO: Lesperance Mendes has been advising strata corporations on strata governance issues since 1997. If your strata corporation requires legal advice with respect to responding to a request for accommodation due to a disability, please contact Amanda M. Magee, Associate, at 604-685-5438 or by email at amm@lmlaw.ca.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on upon without independent legal advice.